Ken Thompson’s legacy of conviction review will live on

The imposing architecture of New York City’s courts give the impression that the law is immutable. The long-serving district attorneys who marshal that law are similarly so permanent as to be like statues, their names unshakably on the ballot.

But Ken Thompson’s brief tenure as Brooklyn district attorney threatened to change that, by bringing the zeal of a reformer to the borough’s courts. He quickly drew national attention for halting prosecutions for most low-level marijuana possession in 2014, for example.

Sadly, his work was cut short when he died of cancer on Sunday at age 50. Funeral services will be held this weekend.

Thompson’s replacement will likely continue his reforms. But most consequential may be Thompson’s attempt to mold the role of that stern, immutable prosecutor — as in his creation of a new Conviction Review Unit.

To do so, Thompson cold-called an unlikely source.

Changing the role of the District Attorney’s office

Harvard Law professor Ronald S. Sullivan Jr. had been the chief public defender in the DC court system. An adversarial judicial system traditionally puts defense attorneys on the other side of a deep divide from prosecutors. Sullivan had done academic work on exoneration and the potential for errors in certain types of convictions.

“The first time he called, I had to make sure that he had the right guy,” Sullivan says.

Thompson was looking for someone to build a review unit that would be the “gold standard” nationally, Sullivan remembers. At the time, Brooklyn’s unit had few people and was meagerly funded.

Sullivan says that while there were a handful of other units around the country at the time, he nicknamed many of them “CRINOs,” because they did conviction review “In Name Only” — they were mainly “justifying the work that their office has done.”

Brooklyn’s CRU was different. It featured cooperation among prosecutors and the defense attorneys representing the incarcerated. A panel independent from the DA’s office also reviewed cases. Sullivan, who ran the unit for its first year, said over that time the panel and the prosecutors tended to agree.

One of the unit’s successes was David McCallum, who was convicted in 1986 at age 16 along with a friend for kidnapping and murder on the strength of a juvenile confession — one of the markers that Sullivan’s research said was ripe for wrongful convictions, particularly when no parent or attorney was present and further evidence didn’t substantiate the crime.

Investigators found a “false fed fact” in McCallum’s confession. The case unraveled from there. There were other inconsistencies, including a car the defendants were alleged to have driven for hours, though neither had a driver’s licence or training. None of their DNA or other physical evidence was found in the car police said was involved in the murder either, says Sullivan.

McCallum was released after nearly 30 years in prison, but it was too late for his co-defendant, who died of a heart attack behind bars. Thompson took the unusual step of commuting his sentence posthumously.

Brooklyn’s CRU has so far exonerated 21 people, according to a law enforcement source.

“The scary thing is,” says Sullivan, “for most of the cases we looked at, we did not find affirmative malice.” No “evil” police officer or prosecutor. A scandal uncovered under Charles Hynes, the previous Brooklyn DA, found that dozens of cases investigated by Det. Louis Scarcella in the 1980s may have been marred by evidence manipulation. Some of those cases are still under review.

Apart from that, the CRU found prosecutions that went awry through simple sloppiness or neglect. Sullivan described one case where a man convicted of murder maintained that he’d been at Disney World with his kids at the time of the crime. The CRU belatedly found a receipt from the hotel in the old case files, never turned over to the defense.

What comes next?

Looking backward for sloppiness can clear someone’s name or get them out of jail.

But more crucial is changing the aggressive lock-’em-up mandate of many city prosecutors, particularly in the era and aftermath of the crack epidemic which drove up the prison population. For Sullivan, one of the crucial changes embedded in the CRU was prosecutors being encouraged to think of themselves as “ministers of justice.”

He said Thompson, for whom there is a “special place in heaven,” tried to spread that culture, alerting new ADAs to situations that tend to result in wrongful conviction. In those cases, future prosecutors should look for further evidence or decline to move forward.

That’s a different mindset than the stereotypical prosecutorial one of indict, overcharge, get the defendant behind bars.

As with other Thompson reforms, it’s an attempt to shape, even if moderately, the enormous power of the law from within. That legacy of reform should continue, though his work ended too soon.